Barnhart v. Pere Marquette Railroad , 188 Mich. 537 ( 1915 )

Bird, J.

Plaintiff was employed as a section hand by the Michigan Central Railroad in December, 1911. The section upon which he was employed commenced about 1,000 feet south of Franklin avenue in the city of Lansing, and extended north to Chandler’s marsh. On the night preceding the 21st of February, 1912, there was a heavy snowfall, and the snow continued to fall and blow during the forenoon of that day. By reason of the storm, plaintiff and his co-workers were called out early to clear the snow from the interlocking switches. After cleaning the last switch, which was situate about 500 feet south of Franklin avenue, the men were ordered by the foreman to take shelter for a time behind a box car standing on a parallel track to the main track, and which was called the scale track, while he went after his mail. The men acted upon his suggestion and after remaining there for a' time, plaintiff was seen to place his broom under his arm and start toward the switch which they had last cleaned. In doing so, he took a southeasterly course, and was soon on the south-bound main track, down which he traveled toward the switch. A few moments later, a Pere Marquette passenger train (which used the tracks jointly with the Michigan* Central) was observed by the men and foreman, following close behind him. They called to him, and the foreman threw a mail box he was carrying at him, in the attempt to call his attention to the train, but presumably by reason of the storm he did not hear them, and the train struck him and injured him so badly that later he lost one of his legs by amputation. The negligence with which the defendants were charged was:

(1) The failure to furnish a safe place in which to perform his duties; (2) the failure to give the statutory crossing signals; (3) operating the train at a speed in excess of that allowed by an ordinance of the city of Lansing; (4) the failure to give heed in operating the train to the fact that it was late, and of the storm conditions.

The trial resulted in a directed verdict for the defendants, on the ground of plaintiff’s contributory negligence.

When plaintiff engaged in this line of work he knew that it was more or less hazardous by reason of the frequent operation of trains, and the law placed upon him the duty of exercising reasonable care to protect himself against injury. Schaible v. Railway Co., 97 Mich. 318 (56 N. W. 565, 21 L. R. A. 660); Aerkfetz v. Humphreys, 145 U. S. 418 (12 Sup. Ct. 835) ; Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Carlson v. Railroad Co., 120 Mich. 481 (79 N. W. 688).

Standing beside the box car on the scale track, he was in a place of comparative safety. The proof tends to show quite conclusively that he was not ordered at that time to clean the switch again, unless it can be said that a general order, which had been given them to keep the switches clean, would suffice. But conceding that his action was in obedience to the general order, there was no occasion for his traveling down the main track to reach the switch, as the very track he started from led to the switch. Instead of traveling down the scale track, he crossed over and went onto the main track, and thereby incurred dangers which he could have, with less trouble, avoided, and he did this on a cold stormy morning, with his cap pulled down partially over his ears, when the weather conditions rendered it very difficult for him to see or hear an approaching train. He also did this with a full knowledge that he was on the south-bound main track, and that trains were being operated over it in the same direction in which he was traveling, and yet, the proof shows that he did not look back, after he started, to protect himself from approaching trains. Considering his conduct independently of Act No. 104, Pub. Acts 1909, it was a plain case of contributory negligence, which will bar his right to recover.

But it is urged that, even if he were guilty of contributory negligence, the defendants were also guilty of negligence, and under Act No. 104, the question as to which was the more negligent should have been submitted to the jury. We do not think that the charges of negligence against the defendant can be sustained, unless it can be said that the engineer was negligent in failing to discover and warn the plaintiff. Respecting the grounds of negligence, it may be said that the doctrine of “safe place” is not involved. The place was safe, and was being used for the very purpose for which it was constructed, and was rendered unsafe for plaintiff only by his own act. The defendants did not owe him the duty of giving the statutory crossing signals. Lepard v. Railroad Co., 166 Mich. 373 (130 N. W. 668, 40 L. R. A. [N. S.] 1105). Nothing can be predicated upon the operation of the train at a speed in excess of that allowed by the ordinance, because the ordinance was not introduced. If we concede that the engineer was negligent in that he did not discover plaintiff on the track and warn him, we are still of the opinion, in view of the storm conditions, that that negligence was clearly of a lesser degree than the negligence of the plaintiff.

While ordinarily questions arising under this statute are questions of fact to be determined by a jury, we are of the opinion that where it is clear that the negligence of the plaintiff is not of a lesser degree than that of the defendant, we should control the verdict as a matter of law. English v. Railroad Co., ante, 286 (154 N. W. 98); Chicago, etc., R. Co. v. Still, 19 Ill. 499 (71 Am. Dec. 236). See, also, Sonsmith v. Railroad Co., 173 Mich. 57 (138 N. W. 347). We think this is such a case, and we therefore hold, as a matter of law under the proofs, that plaintiff’s negligence was not of a lesser degree than' the negligence of the defendants, thereby affirming the view of the trial court. The judgment is affirmed.

Brooke, C. J., and Stone, Ostrander, and Steere, JJ., concurred with Bird, J.